Florida Senate - 2016                        COMMITTEE AMENDMENT
       Bill No. SB 458
       
       
       
       
       
       
                                Ì870846CÎ870846                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  12/01/2015           .                                
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       The Committee on Banking and Insurance (Richter) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete lines 212 - 366
    4  and insert:
    5         5. The transferee has given written notice of the
    6  transferee’s name, address, and taxpayer identification number
    7  to the annuity issuer and the structured settlement obligor and
    8  has filed a copy of the notice with the court;
    9         5.6. The transfer agreement provides that if the payee is
   10  domiciled in this state, any disputes between the parties will
   11  be governed in accordance with the laws of this state and that
   12  the domicile state of the payee is the proper venue to bring any
   13  cause of action arising out of a breach of the agreement; and
   14         6.7. The court has determined that the net amount payable
   15  to the payee is fair, just, and reasonable under the
   16  circumstances then existing.
   17         (b) If a proposed transfer would contravene the terms of
   18  the structured settlement, upon the filing of a written
   19  objection by any interested party and after considering the
   20  objection and any response to it, the court may grant, deny, or
   21  impose conditions upon the proposed transfer which the court
   22  deems just and proper given the facts and circumstances and in
   23  accordance with established principles of law. Any order
   24  approving a transfer must require that the transferee indemnify
   25  the annuity issuer and the structured settlement obligor for any
   26  liability, including reasonable costs and attorney attorney’s
   27  fees, which arises from compliance by the issuer or obligor with
   28  the order of the court.
   29         (c) Any provision in a transfer agreement which gives a
   30  transferee power to confess judgment against a payee is
   31  unenforceable to the extent that the amount of the judgment
   32  would exceed the amount paid by the transferee to the payee,
   33  less any payments received from the structured settlement
   34  obligor or payee.
   35         (d) In negotiating a structured settlement of claims
   36  brought by or on behalf of a claimant who is domiciled in this
   37  state, the structured settlement obligor must disclose in
   38  writing to the claimant or the claimant’s legal representative
   39  all of the following information that is not otherwise specified
   40  in the structured settlement agreement:
   41         1. The amounts and due dates of the periodic payments to be
   42  made under the structured settlement agreement. In the case of
   43  payments that will be subject to periodic percentage increases,
   44  the amounts of future payments may be disclosed by identifying
   45  the base payment amount, the amount and timing of scheduled
   46  increases, and the manner in which increases will be compounded;
   47         2. The amount of the premium payable to the annuity issuer;
   48         3. The discounted present value of all periodic payments
   49  that are not life-contingent, together with the discount rate
   50  used in determining the discounted present value;
   51         4. The nature and amount of any costs that may be deducted
   52  from any of the periodic payments; and
   53         5. Where applicable, that any transfer of the periodic
   54  payments is prohibited by the terms of the structured settlement
   55  and may otherwise be prohibited or restricted under applicable
   56  law; and
   57         6. That any transfer of the periodic payments by the
   58  claimant may subject the claimant to serious adverse tax
   59  consequences.
   60         (4) VENUE JURISDICTION; PROCEDURE FOR APPROVAL OF
   61  TRANSFERS; CONTENTS OF APPLICATION.—
   62         (a) At least 20 days before the scheduled hearing on an
   63  application for authorizing a transfer of structured settlement
   64  payment rights under this section, the transferee must file with
   65  the court and provide to all interested parties a notice of the
   66  proposed transfer and the application for its authorization. The
   67  notice must include:
   68         1.(a) A copy of the transferee’s application to the court;
   69         2.(b) A copy of the transfer agreement;
   70         3.(c) A copy of the disclosure statement required under
   71  subsection (3);
   72         4.(d) Notification that an interested party may support,
   73  oppose, or otherwise respond to the transferee’s application, in
   74  person or by counsel, by submitting written comments to the
   75  court or by participating in the hearing; and
   76         5.(e) Notification of the time and place of the hearing and
   77  notification of the manner in which and the time by which any
   78  written response to the application must be filed in order to be
   79  considered by the court. A written response to an application
   80  must be filed no later than 5 within 15 days before the date
   81  after service of the scheduled hearing in order to be considered
   82  by the court transferee’s notice.
   83         (b)An application must be made by the transferee and filed
   84  in the circuit court of the county where the payee is domiciled.
   85  However, if the payee is not domiciled in this state, the
   86  application may be filed in the court in this state which
   87  approved the structured settlement agreement or in the court
   88  where the settled claim was pending when the parties entered
   89  into the structured settlement.
   90         (c) The court shall hold a hearing on the application. The
   91  payee shall appear in person at the hearing unless the court
   92  determines that good cause exists to excuse the payee from
   93  appearing.
   94         (d) In addition to complying with the other requirements of
   95  this section, the application must include:
   96         1. The payee’s name, age, and county of domicile and the
   97  number and ages of the payee’s dependents;
   98         2. A copy of the transfer agreement;
   99         3. A copy of the disclosure statement required under
  100  subsection (3);
  101         4. An explanation of reasons as to why the payee is seeking
  102  approval of the proposed transfer; and
  103         5. A summary of each of the following:
  104         a. Any transfers by the payee to the transferee or an
  105  affiliate, or through the transferee or an affiliate to an
  106  assignee, within the 4 years preceding the date of the transfer
  107  agreement.
  108         b. Any transfers within the 3 years preceding the date of
  109  the transfer agreement made by the payee to any person or entity
  110  other than the transferee or an affiliate, or an assignee of a
  111  transferee or an affiliate, to the extent such transfers were
  112  disclosed to the transferee by the payee in writing or are
  113  otherwise actually known by the transferee.
  114         c. Any proposed transfers by the payee to the transferee or
  115  an affiliate, or through the transferee or an affiliate to an
  116  assignee, for which an application was denied within the 2 years
  117  preceding the date of the transfer agreement.
  118         d. Any proposed transfers by the payee to any person or
  119  entity other than the transferee, or an assignee of a transferee
  120  or an affiliate, to the extent such proposed transfers were
  121  disclosed to the transferee by the payee in writing or are
  122  otherwise actually known by the transferee, for which
  123  applications were denied within the year preceding the date of
  124  the transfer agreement.
  125         (5) WAIVER PROHIBITED; NO PENALTIES INCURRED BY PAYEE;
  126  RELIANCE ON COURT ORDER; COMPLIANCE; RELEASE FROM LIABILITY;
  127  CONSTRUCTION.—
  128         (a) The provisions of this section may not be waived by the
  129  payee.
  130         (b) If a transfer of structured settlement payment rights
  131  fails to satisfy the conditions of subsection (3), the payee who
  132  proposed the transfer does not incur any penalty, forfeit any
  133  application fee or other payment, or otherwise incur any
  134  liability to the proposed transferee.
  135         (c) In any transfer of structured settlement payment
  136  rights, the transferee is solely responsible for compliance with
  137  the requirements of paragraph (3)(a) and subsection (4), and
  138  neither the structured settlement obligor nor the annuity issuer
  139  shall incur any liability arising from noncompliance.
  140         (d) Following issuance of a court order approving a
  141  transfer of structured settlement payment rights under this
  142  section, the structured settlement obligor and annuity issuer:
  143         1. May rely on the court order in redirecting future
  144  structured settlement payments to the transferee or an assignee
  145  in accordance with the order; and
  146         2. Are released and discharged from any liability for the
  147  transferred payments to any party except the transferee or an
  148  assignee, notwithstanding the failure of any party to the
  149  transfer to comply with this section or with the orders of the
  150  court approving the transfer.
  151         (e)If the terms of the structured settlement prohibit
  152  transfer of payment rights:
  153         1. A court is not precluded from hearing an application for
  154  approval of a transfer of such payment rights or ruling on the
  155  merits of the application and any objections to the application;
  156  and
  157         2. The parties to such structured settlement are not
  158  precluded from waiving or asserting their rights under such
  159  terms.
  160  ================= T I T L E  A M E N D M E N T ================
  161  And the title is amended as follows:
  162         Delete lines 4 - 26
  163  and insert:
  164         definitions; revising specified disclosures and
  165         notices that are or may be required to be given in
  166         order to effect transfers of structured settlement
  167         payment rights and payments under such rights;
  168         revising the time limit by which a written response to
  169         an application for transferring such rights must be
  170         filed; specifying requirements for the filing and
  171         contents of the application; requiring the court to
  172         hold a hearing on the application; requiring a payee
  173         to appear in person unless the court determines that
  174         good cause exists to excuse the payee; providing that
  175         the transferee is solely responsible for compliance
  176         with certain requirements; providing that following
  177         issuance of a court order approving the transfer, the
  178         structured settlement obligor and annuity issuer may
  179         rely on the order in redirecting certain payments and
  180         are released and discharged from certain liability;
  181         providing for construction if the terms of the
  182         structured settlement prohibit transfer for payment
  183         rights; conforming